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Altamirano v. Dexter3/13/2001
9, 629, 818 P.2d 1056 (1991).
The discovery deadline under the scheduling order is unclear from the record. Trial was set for April 12; the deposition was noted for April 1. The notice of intent to depose failed to name a Dr. Day, the eventual deponent. Rather, it made a blanket designation of taking the deposition of someone from the Quality Assurance Commission. The lateness of noting this deposition, coupled with the uncertainty as to the identity of the person who was to be deposed, gave the court sufficient basis to grant the protective order under CR 26(b) and (c).
Ms. Altamirano claims the court erred by permitting Dr. Ward to testify by video deposition that the procedure presented to the Board was not the same procedure used by Dr. Dexter. The procedure Dr. Ward presented dealt with the identification of emotional conditions by analyzing x-rays and measuring certain structural components. Ms. Altamirano objected to this testimony as hearsay. The court ruled that it was not and admitted the testimony.
Hearsay is any statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. ER 801(c). Hearsay is inadmissible except as provided by rule or statute. ER 802. Dr. Ward was asked: '{W}hat was the issue or subject before the quality assurance board in 1992, that you spoke about for five minutes?' Deposition of Lowell E. Ward, D.C., at 137. He answered that he spoke to the Board about the personality or emotional profiling component of stressology, not the physical treatment. His testimony reflected what he told the Board. Dr. Ward was the declarant and he testified regarding his statements. His testimony did not indicate how or why the Board came to its decision regarding this procedure. The court properly determined that this testimony was not hearsay and admissible.
Both parties have requested an award of attorney fees pursuant to RAP 18.1. RAP 18.1(a) permits an award of reasonable attorney fees if applicable law authorizes such an award. Neither party, however, complied with RAP 18.1(b), which requires devoting a section of their brief to the fee request. Failure to comply with the requirements of this rule precludes an award of fees. See Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710, 952 P.2d 590 (1998). Moreover, neither party points to any applicable law that would permit an award of reasonable attorney fees in any event.
The judgment is affirmed; the requests for attorney fees are denied. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Kato, J.
WE CONCUR:
Brown, A.C.J.
Schultheis, J.
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